This is a petition to review an award of compensation made by respondent commission in favor of respondent MacDowell (hereinafter referred to as the “employee”) against petitioner Industrial Indemnity Company as the insurance carrier of petitioner Douglas Aircraft Company, Inc.

Facts: The employee was working for Douglas Aircraft Company, Inc. as a tool control dispatcher. He was employed on the night shift, and it was customary for him on two or three occasions each night to take a three-wheeled motor scooter to deliver blueprints to the blueprint room, pick up other blueprints, and return them to the toolroom.

About 10:40 p.m. on December 11, 1954, he took the motor scooter, went to the blueprint room, picked up blueprints and while returning to the tool booth where he worked he “struck a bump” in the road which threw him off the motor scooter. As a result of this fall he was injured.

The commission found:

Applying these rules to the instant ease, the record discloses ample evidence to sustain each of the questioned findings. For example:

The record discloses there was a conflict in the evidence relative to the employee’s intoxication. Viewing, however, as we must in accordance with rule (1), supra, the evidence most favorable to sustaining the finding of the commission and disregarding conflicting evidence, the record reveals that prior to the accident on the evening in question the employee, during his lunch time (7:30 to 8 p.m.), consumed two or three bottles of beer with a sandwich. Two fellow workers- testified he was not at all intoxicated, that from his appearance there was no indication he had been drinking, and they noted no odor of alcohol about his person. In addition, the “lead man” testified he noticed the employee and thought he had had a few drinks but was not going to bother him and left him alone. The employee himself testified that he never drank to the extent of reaching a drowsy stage and that he always quit if he felt drowsiness coming on. He further testified that he was thrown from the scooter when it struck a bump, and there is no evidence to the contrary.

In view of the foregoing evidence it is obvious that a question of fact as to whether or not the employer’s defense that the inebriation was a proximate cause of the employee’s accident was presented to the commission for its determination.

It is likewise evident that the evidence sustains the finding of the commission that even though the employee was inebriated at the time of his accident, the extent of such inebriation was not sufficient to impair his ability to ride a scooter and observe the ordinary hazards he might encounter.

The evidence also supports the finding of the commission that the accident was caused, as the employee testified, by his striking a bump in the road rather than by his inebriation.

Therefore, petitioners failed to sustain the burden of proof resting upon them, and the finding of the commission is binding upon this court.

The award is affirmed.

Gibson, C. J., Shenk, J., Carter, J., Traynor, J., Schauer, J., and Spence, J. concurred.

Petitioners’ application for a rehearing was denied March 5, 1957.

Section 5705 of the Labor Code reads in part as follows: “The burden of proof rests upon the party holding the affirmative of the issue. The following are affirmative defenses, and the burden of proof rests upon the employer to establish them: . . . (b) Intoxication of an employee causing his injury.”